Who was the “Primary” Parent During the Marriage?

In making a determination for child custody purposes as to which of two parents should be considered the “primary” parent during the marriage, a court will look at a large number of factors and circumstances.

The most straightforward one is where one spouse was a stay-at-home parent during the marriage, while the other worked full-time. The stay-at-home parent will usually have a well-established history of being able to provide for the needs and well-being of the children. In ordering custody, the court will usually (but not automatically) order that the status quo should be maintained in these cases. However, the matter becomes more complex when both parents worked full or part-time. Then, the court will scrutinize their lifestyle closely and will consider various other factors. These include considering whether predominantly one parent or the other:

• Was more involved in day-to-day tasks such as preparing the children’s meals, getting them ready for and taking them to school, and taking care of them when they are not in school;

• Was responsible for the children’s hygiene (including bathing and dressing them, and shopping for their clothes), their social calendar (arranging for playdates and extra-curricular activities and sports), and their heath (arranging and taking the children to medical/dental appointments);

• Was involved in their education (such as helping them with homework and attending parent-teacher interviews); and

• Was instrumental in their discipline and in any religious instruction.

These factors are diverse, and do not represent a full and comprehensive list. Still, they are important because there is a strong presumption that the primary parent should retain custody of the children after separation. Moreover, it can be very difficult for the non-primary parent to displace this presumption to a court’s satisfaction.

Even with this list in place, given the fluidity and flexibility of many modern parenting arrangements the identification of the primary parent is not always straightforward. There are many illustrations of this, but the 2008 Ontario court decision of Petit v. Petit serves as one example. There, the family had originally lived in Smooth Rock Falls, but after the father lost his job, they moved to Dryden so that he could accept a job there. After a Christmas visit back to Smooth Rock Falls, the wife decided to stay there with the children while the husband returned to Dryden. A declaration by the wife that the marriage was over soon followed, with her deciding to stay with the children in Smooth Rock Falls permanently.

Against this background, the court was asked to award custody to one of the parents, after considering not only who the children’s primary parent was, but also where they were primarily resident.
At the time of separation – which is when the court usually considers the status quo between the parties for custody determinations – the children were with the mother in Smooth Rock Falls and could arguably be designated their primary parent at that time. However, the court had to consider the overall evidence as to the role of each parent while the family was still together. This involved considering who was the stronger disciplinarian, who spent more time with the children, and what outside activities each parent was involved in, both with the children and on their own.

The court took note of the fact that the mother took maternity leave for the first few months of the children’s lives, but then went back to work full-time before the maternity leave ended. While she worked, child care was split between her mother, and the husband’s mother. Although the mother was more involved in making medical appointments for the children, the father sometimes attended as well. Both attended school functions when they were able to do so.

Similarly, the court observed that the father often had days off due to his shift work, which he spent with the children. He was more involved with the children during the summer months, including taking them to his parents’ camp. Moreover, the determination of primary parent was somewhat muddied in this case because the paternal and maternal grandparents collectively had the most involvement with the children from the time of their birth.
Overall, the court concluded that both parents were capable and caring individuals, and the ability of either of them to parent the children was not a concern. The children were happy, healthy and well-adjusted. Still – and while the mother may have spent more time with and been the primary parent for the children at Smooth Rock Falls in the time immediately before separation – the court found that their father should have custody in all the circumstances.

This case illustrates the complex factors that go into determining the important question of who is the primary parent for child custody purposes. Feel free to contact our offices so that we can discuss your particular situation and how your rights may be affected.

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